The silk road

November 21, 2022 09:01
Photo: Hong Kong Bar Association

By one of those fortuitous coincidences, 2022 is not only the year in which by virtue of the death of Queen Elizabeth II I became King’s Counsel instead of Queen’s Counsel, it also happens to be the thirtieth anniversary of me ‘taking silk’, which is the arcane way barristers describe becoming QC or as it is now, KC.

After 30 years in silk and 58 years as a barrister it is appropriate to pause a moment to reflect on what being a silk connotes.

What’s in a name? The role of a Leader at the Bar is entitled Senior Counsel or SC in Hong Kong, Ireland and other common law countries which do not have the sovereign as their titular head of state.

As with any form of title, its value is only as good as the quality of the individual who bears it and, like the curate’s egg, it is only good in parts.

By what process does one become endowed with this status? That, too, is often shrouded in a cloak of mystery.

Nowadays in England and Wales it is a fairly open mechanism involving an over lengthy application, sponsorship by judges, and a comprehensive account of the applicant’s contribution to the profession. Those who adjudicate it will also be anxious to reflect proportional representation of the sexes, ethnic minorities and members of that cohort of physical or mental disabilities.

A far cry from the regime that held sway during the early years of my practice at the Bar.

Curiously, unlike in medicine, the learned profession with which the Bar shares the concept of a consultant status, accession to silk is not determined by one’s professional peers.

In England the gift remains in the hands of the Lord Chancellor’s Department and in Hong Kong it is the prerogative of the Chief Justice.

Despite which, the system seems to muddle along without too many pigs in lipstick, though I confess I could name one or two.

But what does being in silk really signify or, better to ask, what should it signify?

The qualities demanded of an applicant for silk naturally include a thorough grasp of the law and its practice and procedure. But more important is a reputation for skill, judgment and integrity in the pursuit of one’s professional life.

Of these, judgment and integrity are critically important. Being designated silk connotes that you are a leader of your profession and as such, having regard to the very public nature of practice at the Bar, you should be an exemplar.

For certain sure, one cannot acquire these skills from poring over legal textbooks or attending CLP lectures, the only sound route is from experience in the trenches of advocacy.

As my very good and learned friend Michael Ozorio SC once described it, we are not advocates but street fighters.

But contrary to the notion of the no-holds-barred warrior, we are hedged in by a complex catalogue of documented rules and, of far greater significance, a world of unwritten conventions.

Musicians have an in-house joke, ‘How do you get to Carnegie Hall? Practice, practice, practice.’ The same applies to the route to silk.

The lessons are learned in the sawdust of litigation’s adversarial ring.

But as in the Circus Maximus of Ancient Rome, the contest has its own invisible code of conduct which the actors learn from the very process of participation.

As befits an honourable profession, that code demands honourable conduct and the standards are set by the leaders of the profession, the silks.

All too often, those who aspire to silk are focused on the higher fees that can be sought. These are, by definition, unworthy applicants.

The responsibilities that come with the job are of prime importance.
A barrister’s reputation is the only stock in trade that he or she will ever possess. We daily face the risk of Othello’s fate.
“O! I have lost my reputation. I have lost the immortal part of myself,”

By virtue of the status, the silk is entrusted with cases of greater importance and complexity; the stakes in terms not only of high value claims but even more important the liberty and good name of the individual litigant, are of the highest order.

That code of which I speak demands a more holistic approach to the cases in which we are instructed.

To whom is the duty owed and, more significantly, in what order of priority?

The duty to the court takes primacy but, on occasion, a tribunal, no matter how elevated, may fall into error, in which event there is a commanding responsibility to correct it, even at the risk of incurring judicial wrath from the lesser gifted incumbents on the bench. It is the duty to the concept of justice that informs this obligation.

What of the duty to the wealthy client who insists that you advance an argument which, objectively, has no merit? If he cannot be dissuaded, the brief must be returned. How to compute the loss of the munificent fee against the murdered reputation?

How to react to the judge who takes a bad point which favours your client? Sycophantically agree, or remain silent and win a spurious victory or support your opponent who is trying to lead the judge back onto the true path?

Instructed to prosecute a high profile criminal trial, on reading the papers you conclude that the evidence does not support the alleged crime, do you tug your forelock to the Secretary for Justice in order to ensure a steady stream of instructions or decline the instruction?

Taking what is ethically and morally the right course always runs the risk of incurring the disfavour or even acrimony of potentially powerful clients with a consequential loss of that fruitful source of income.

The principled silk road is strewn with boulders and pig traps through which the practioner must pick a true path, ignoring the lure of the money pot.

My earnest hope is that over these last 30 years, whatever mistakes I may have made, I have not stumbled off that path.

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